Out of range: an interview with Mark Tushnet on the Second Amendment

Social Education, Sept, 2007 by James H. Landman

This September, Oxford University Press is publishing Out of Range: Why the Constitution Can't End the Battle Over Guns. Written by Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard Law School, Out of Range explores competing interpretations of the Second Amendment and discusses how the entanglement of our views on guns in our nation's culture wars is affecting our ability to reach a neutral compromise on gun policies. Out of Range is the third volume in the Oxford University Press series on Inalienable Rights, which is designed to educate the public about our nation's foundational ideals and to stimulate the kind of widespread critical engagement that is the hallmark of a healthy democracy. In July, Professor Tushnet discussed Out of Range with "Looking at the Law" editor James Landman.

Professor Tushnet, you identify two basic models that define debates over interpretation of the Second Amendment. These include the "Standard Model" (also described as the "individual rights" model) and the "Traditional Model" (also called the "collective rights" or "states' rights" view). Can you briefly explain the major points of difference between these models and the significance of these differences for interpretation of the Second Amendment?

Under the Standard Model, which has become common over the past generation, the idea is that the Second Amendment was designed to secure rights in individuals to own weapons to use in defense of the country or in their own defense. The earlier view, which I call the traditional view, was that the Second Amendment guaranteed a right in connection only with one's ability to participate in the organized militia of the country. Originally, these were state-organized militias that would be the equivalent today of the National Guard. The basic disagreement between the models is over whether individuals have a right independent of their membership in a state-organized militia to own weapons for purposes such as self defense.

Amendment II

   A well regulated Militia being
   necessary to the security of a
   free State, the right of the people
   to keep and bear Arms, shall
   not be infringed.

Much attention has been paid to the "preamble" of the Second Amendment (also called the "prefatory clause"). The preamble of the amendment describes "A well regulated Militia, being necessary to the security of a free State." As you explain in Out of Range, the preamble can be interpreted either as an explanation of the right of the people to keep and bear arms, or as a limitation on that right. What are the implications of these possible interpretations for the Standard Model? For the Traditional Model?

The easiest place to begin is by looking at the preamble as a limitation. The idea behind this view is that the preamble is designed to say that only those people who are participating in militia have a right to keep and bear arms.

Those who look at the preamble as an explanation, however, say that the preamble is simply meant to explain to us why it is that each of us has a right to keep and bear arms. And the reason is that if we have that right, we will be able to participate in well-organized militia that have various attractive qualities. But again, it's an explanation, not a limitation, on our right to bear arms and should not impose constraints on our application of the amendment.

Focusing solely on the understanding of the Second Amendment at the time it was adopted in the late eighteenth century, you argue that the evidence in favor of an individual rights interpretation of the Second Amendment is slightly stronger than the evidence supporting a collective rights view of the amendment. What evidence do you think tips the balance in favor of an individual rights view?

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It is, I think, a reasonably close question. It's relatively straightforward to read the evidence about people's discussions of why we have the right to bear arms at the time the amendment was adopted as supporting an individual right. Although there's not a night-and-day difference between evidence supporting an individual right and evidence that the right was limited to participation in a militia, the evidence for the more limited right is just a bit weaker, or not quite as extensive, as the evidence supporting the individual right.

You also argue, however, that patterns in statutes and cases since the mid-nineteenth century have moved toward the collective rights interpretation of the Second Amendment, in which the amendment imposes "at most extremely weak ... limitations on the government's power to regulate the use and possession of weapons." As you note, in virtually all other areas of constitutional interpretation, tradition and precedent matter as least as much, and perhaps more, than original understandings of the Constitution. Why do arguments based on original understandings of the Second Amendment continue to figure so prominently in debates over its meaning?

That's a very hard question that I thought about quite a bit as I was writing the book. I ended up thinking that the reason why arguments based on original understandings remain so strong is that both sides think they can win by invoking original understandings. Neither side, then, has much of an incentive to move away from treating Second Amendment issues as somehow special in constitutional law or as an unusual place in constitutional interpretation where we don't worry about what has happened since the founding. But it remains something of a puzzle why the focus is so clearly on original understanding.